Barry E. Moore and Deborah E. Moore - Page 16

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          the confidentiality of the documents kept by [a former consultant           
          to the plaintiff]”); Apex Mun. Fund v. N-Group Sec., 841 F. Supp.           
          1423, 1433 (S.D. Tex. 1993) (refusing to recognize attorney-                
          client privilege over documents that the party asserting the                
          privilege had effectively abandoned to a former employee).                  
          International has made no showing of any precautions taken to               
          maintain the confidentiality of the exhibits, either generally or           
          with respect to departing employees, such as Moore.  Indeed, Dr.            
          Joffe was Manager of Surgery Center in 1997, when Kelly authored            
          the exhibits, and continuing through July 28, 2000.  He was                 
          available to testify or provide an affidavit as to precautions              
          taken to insure the confidentiality of the exhibits, but he did             
          not do so.  We think that a fair inference to be drawn from                 
          International’s failure to call Dr. Joffe or provide his                    
          affidavit is that his testimony or declaration would have been              
          negative to International.  See Wichita Terminal Elevator Co. v.            
          Commissioner, 6 T.C. 1158, 1165 (1946) (“the failure of a party             
          to introduce evidence within his possession and which, if true,             
          would be favorable to him, gives rise to the presumption that if            
          produced it would be unfavorable”), affd. 162 F.2d 513 (10th Cir.           
          1947); see also United States v. Tory, 52 F.3d 207, 211 (9th Cir.           
          1995) (similar).  We therefore find that Surgery Center failed to           
          preserve the confidentiality of the exhibits, with the result               
          that Moore’s disclosure of the exhibits destroyed the                       






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